Focus on Rights

From secrecy to openness: lessons from India

By: Kishali Pinto Jayawardene

Information is power not only for the media but for ordinary people as
well. This truism has been well worked in India for example, where the
right to know debate has shifted from elitist discussions in cities to
villages and shanties, exciting action among the rural and urban poor.

In one backward area in south Rajasthan, for example, over five hundred
people — half of them women – waited in sweltering heat to participate
in public hearings on whether public money allotted for development had
been misused. One woman symbolised public aggressiveness. After squatting
on the ground for three hours, she walked up when called upon and raising
her shawl modestly over her head in the customary manner of her people,
insisted that "we have the right to see the official record."

She explained that this was to check whether the money set apart for
them had been properly used and went on to point out that the local government
official, who was responsible for the utilising of the funds, had disappeared
from sight since their protests had started.

She was succeeded by villager after villager who came out with details
regarding incomplete roads and irrigation channels, inflated wages given
to a selected few in the local authorities and funds used for wholly imaginary
buildings and constructions.

Public agitation was not confined to that district but was being repeated
in areas all over the province and indeed in other provinces like Madhya
Pradesh and Goa. These protests were the results of a long drawn out struggle
by grass roots movements in the country from about the early 1990s to have
the right to obtain photocopies or certified copies of bills, vouchers
and other documents relating to rural development work and programmes.

In one instance, the origins of this struggle had been in the denial
of minimum wages at rural employment and relief works. One group of workers
organised themselves round this demand and started holding public hearings
where local people, media persons, elected representatives and eminent
citizens were invited to listen to details of how funds meant for their
wages were being misused. These included specific facts and figures of
how dead people were shown to have received wages, how non existent people
received land and how fraudulent companies had been created to claim large
shares of rural development funds without supplying the materials or doing
any work.

As public pressure mounted, in one village, particularly from the women
who continued demonstrating in large numbers in front of government offices,
the provincial authorities gave way to widespread indignation and returned
some two lakhs of money that had been siphoned off to corrupt politicians.
Another official, an engineer of the State Electricity Board returned,
in public, Rs 15,000 which he had extracted from a poor farmer. The villagers
responsible for these truly amazing happenings might have never heard of
Woodrow Wilson's words that "everybody knows that corruption thrives in
secret places and avoids public places and we believe that it is a fair
presumption that secrecy means impropriety" but they were surely carrying
out his observations to the letter.

This grassroots agitation for a right to information in India led, in
fact, to many states enacting their own Freedom of Information legislation.

While states like Goa and Tamil Nadu passed information legislation,
some states such as Orissa, Kerala and Karnataka have passed executive
orders giving access to information. Though progress was obvious, it was
slow and in some instances, very contradictory. In Rajasthan itself, a
prime site for agitation, the Chief Minister declared that any citizen
had the right to information. On payment, anyone could demand and receive
details of expenditure on work done for the past 15 years and all the documents
could be photocopied as evidence should they wish to use it in court.

This bold announcement, however, took a full year to be implemented
and even then, was only partially approved with individuals being given
the right to write down the details in the documents but not to take photocopies.

Differences in various parts of the country regarding securing the right
to know has now led to a draft national Freedom of Information Bill. Again,
this Bill articulates classic government doublespeak in that, while giving
citizens the right to information, it also specifies a long list of exceptions
that has raised the ire of activists and journalists. These exceptions
include not only information that prejudicially affects the sovereignty
and integrity of India, security of the State and public security and order,
but also Center-State relations, strategic scientific or economic interests
or conduct of international relations.

Even more controversially, information regarding Cabinet papers and
legal advice given prior to an executive decision are also included in
the exemptions, all of which are not subject to any public interest test.

The opposition to these exceptions has been formidable with not only
the media but also activists and women's groups condemning the Bill as
restrictive and highly out of tune with modern free speech laws. The lobbying
for a liberalised right to information is typically well organised, with
campaigners bringing to the forefront, the admonition delivered by the
Indian Supreme Court as far back as 1975 that "in a government of responsibility
like ours where the agents of the public must be responsible for their
conduct, there can be but few secrets. The people of this country have
a right to know every public act, everything that is done in a public way
by their public functionaries. They are entitled to know the particulars
of every public transaction in all its bearings. The right to know which
is derived from the concept of freedom of speech, though not absolute,
is a factor which should make one wary when secrecy is being claimed for
transactions which can at any rate, have no repercussions on public security."
(State of U.P.vs Raj Narain, 1975) .

This process is instructive for Sri Lanka as well. More so now, with
a draft Freedom of Information Bill proposed by the media community being
circulated for feedback and finalisation.

Issues relating to information exist in this country in no less an imperative
manner than in India. Not so long ago, for example, a furore was raised
over Section 3 of Chapter XXX1 of Volume 1 and Section 6 of Chapter XLVII
of Volume 2 of the Establishment Code which prohibits public officials
from disclosing any information to the media.

Although this had been in statute books for decades, it had never been
implemented. However reports last year that the Cabinet had decided to
implement this section, reacted on nervous public servants who thereafter
refrained from the slightest act which might have brought themselves within
the prohibition. These included almost farcical instances of refusing to
confirm or deny information already in the hands of journalists and even
refusing to give initials of public servants or statistical information
without the sanction of the Secretary of the Ministry.

The proposed Bill gives the right to information to all citizens in
the country subject only to narrow exceptions. These include information
relating to the territorial integrity or national security of the state,
lives of troops engaging in military operations, or information that relates
to or has a prejudicial impact on foreign policy or international relations.
Included also is information infringing personal privacy of a party, information
relating to the collection of revenue by the Inland Revenue Department,
information revealing trade secrets or harming the commercial interests
of a party or endangering the safety of any person.

The disclosure of the medical secrets and/or records of any person or
such information is privileged or should otherwise be kept confidential
by reason of the existence of a fiduciary or like relationship is also
prohibited. All exceptions however would not apply if the information is
vital in the public interest or if such information is already in the public
domain. Penalties are visited on information officers who are found to
indulge in arbitrary or capricious denial of information.

Access to information meanwhile is unrestricted by any condition that
it should be in relation to a pending legal proceeding. Rather, an overriding
principle of the Bill is that access should be allowed for the public good
and in the national interest. Non access has been made subject to the scrutiny
of court. In the present context, what is needed in this country is a broadbasing
of the struggle to bring about an information law, much on the lines of
the lobbying in India. In any event, given these parallel ongoing initiatives
in India and Sri Lanka relating to specific Freedom of Information legislation,
what manner of legislation is ultimately enacted, if at all, in the two
countries will be of undoubted interest to the entire region.